Case: 18-40595 Document: 00515065194 Page: 1 Date Filed: 08/06/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-40595 August 6, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. MANUEL BOTELLO-ZEPEDA, also known as Manuel Botello, also known as Manuel Botello Zapeda, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge: Manuel Botello-Zepeda appeals the sentence imposed for his conviction of illegal reentry into the United States. He contends that, in imposing an upward variance at sentencing, the district court erred in considering the facts of an unrelated case and his need for treatment for his alcoholism. We AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND Manuel Botello-Zepeda pled guilty without a plea agreement to illegal reentry into the United States under 8 U.S.C. § 1326. The presentence report (“PSR”) indicated that he had five prior adult convictions: (1) an October 2006 Case: 18-40595 Document: 00515065194 Page: 2 Date Filed: 08/06/2019 No. 18-40595 Texas conviction for driving while intoxicated (DWI), for which he was sentenced to 180 days of confinement suspended for two years of probation, a $1,000 fine, and 150 hours of community service; (2) an April 2012 Texas conviction for DWI second offense, for which he was sentenced to one year of confinement suspended for 18 months of probation, three days of confinement, a $750 fine, and 50 hours of community service; (3) a May 2012 federal conviction under 8 U.S.C. § 1325(a) for improper entry by an alien, for which he was sentenced to 45 days of confinement; (4) an August 2012 federal conviction under Section 1325(a) for improper entry by an alien, for which he was sentenced to 80 days of confinement; and (5) a June 2017 Texas conviction for DWI third offense, for which he was sentenced to 10 years of confinement suspended for 10 years of probation, 90 days of confinement, a $500 fine, and 160 hours of community service. The PSR assessed a total of eight criminal history points, including two points because Botello-Zepeda committed the present offense while still on probation for his third DWI offense. The criminal history score of eight corresponded to a criminal history category of IV. The PSR further indicated that Botello-Zepeda had additional arrests in December 2008 and April 2012 for being in the United States unlawfully, but that he was allowed to return voluntarily to Mexico on both occasions. He was ordered deported in June 2012 and October 2012, following each of his prior improper-entry convictions. His current offense was committed in August 2017. Botello-Zepeda’s total offense level was 12, calculated as follows: a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a); a two-level enhancement pursuant to Section 2L1.2(b)(1)(B) because he committed the current offense after his two prior misdemeanor convictions for improper entry; a four-level enhancement pursuant to Section 2L1.2(b)(3)(D) because he committed the 2 ...
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